Tom Friedman's column in today's New York Times says something I've believed for some time-- Even if the Bush Administration has justified reasons for going to war with Saddam Hussein, it has played its hand particularly badly. Its parochialism, chauvinism, and truculence have seriously undermined its case diplomatically. As Friedman points out:

I side with those who believe we need to confront Saddam — but we have to do it right, with allies and staying power, and the Bush team has bungled that.

The Bush folks are big on attitude, weak on strategy and terrible at diplomacy. I covered the first gulf war, in 1990-91. What I remember most are the seven trips I took with Secretary of State James A. Baker III around the world to watch him build — face-to-face — the coalition and public support for that war, before a shot was fired. Going to someone else's country is a sign you respect his opinion. This Bush team has done no such hands-on spade work. Its members think diplomacy is a phone call.

The flip side of the Bush Administration's vision of strong leadership-- i.e., its aggressiveness-- is that it is not particularly good at diplomacy, and diplomacy is what you need to put together an effective coallition. Friedman also points out, I think correctly, that by trying to link Saddam Hussein with Osama bin Laden, the Bush Administration is being neither particularly honest or persuasive. "There is simply no proof of that," Friedman writes, "and every time I hear them repeat it I think of the Gulf of Tonkin resolution. You don't take the country to war on the wings of a lie."

Finally, the Administration has continually overplayed the immediacy of the threat and simultaneously downplayed the costs and dangers of an occupation of Iraq that may last many years. As Friedman (who supports a war) puts it, if you are going to war, you have to be honest with those you wish to convince, and, equally important, honest with yourself:

Tell people the truth. Saddam does not threaten us today. He can be deterred. Taking him out is a war of choice — but it's a legitimate choice. It's because he is undermining the U.N., it's because if left alone he will seek weapons that will threaten all his neighbors, it's because you believe the people of Iraq deserve to be liberated from his tyranny, and it's because you intend to help Iraqis create a progressive state that could stimulate reform in the Arab/Muslim world, so that this region won't keep churning out angry young people who are attracted to radical Islam and are the real weapons of mass destruction.

That's the case for war — and it will require years of occupying Iraq and a simultaneous effort to defuse the Israeli-Palestinian conflict to create a regional context for success. If done right, such a war could shrink Al Qaeda's influence — but Al Qaeda is a separate enemy that will have to be fought separately, and will remain a threat even if Saddam is ousted.

In the United States, the Bush Administration can get away with suggesting that Saddam and Al Qaeda are linked without any real proof. At home it can also spur sufficient patriotic fervor, moral disgust with Saddam, and overt disdain for our allies the French and Germans, to keep most Americans from asking the truly hard questions about the costs and duration of the occupation that will follow a war, and the dangers of destabilization and destruction that may well attend our bold adventure. But overseas, where Bush is regarded as a bit of a bully and not at all a straight shooter, these failings in the case for war are particularly glaring.

If Bush had done things differently, if he had started with diplomacy, as his father did in 1990-91, and not treated our allies, and the U.N., with barely disguised contempt and with accusations of cowardice and irrelevance, he might not be in the situation he currently is in. He might not have to go to war with a "coallition of the willing," but might truly be leading the world to pressure a rogue state to disarm. But because he has treated our allies so roughly and disrespectfully, he has squandered the best opportunity he might have had. This is an Administration that prides itself on being tough and domineering. But its pride and its aggressiveness are its greatest limitation. Great leadership is more than being overbearing and forceful; great power is more than making threats and accusing those who don't blindly follow you of betrayal and subversion. Great leaders do not merely threaten, they also persuade; they do not simply accuse and denounce those they wish to bring to their side, they make it possible for others to agree with them and work with them. It is time for our leaders to stop behaving like a casting call for a "B" Western. As someone famous recently put it, all of this strutting and posturing is like a bad movie, and I've seen it before.

Sun Tzu says that the greatest general is one who never has to go to war. But that simply raises the question: How can the United States achieve its objectives without going to war?

It’s important to understand that a strategy for avoiding war does not mean that we should not threaten to go to war. The only reason why Saddam Hussein has agreed to let weapons inspectors back in his country in the first place is because the United States has begun preparations for war. It is sometimes necessary to make a realistic threat of the use of force.

However, threatening to go to war and making preparations for war is not the same thing as actually going to war. There is a crucial difference. Threatening and preparing for war offers both a carrot and a stick. If you don’t do what we say, we will go to war. If you do what we say we will not go to war. Simply signaling that we are going to war no matter what transpires offers Saddam no reason to do anything other than to prepare for war himself. Thus the optimal strategy is to threaten war while always leaving Saddam with the option to avoid it through disarming. It is ok to be forceful; it is not ok to be so forceful that one undermines the strategic advantage of making a realistic threat of force.

Our European allies want us to take more time and engage in more rounds of inspections. We should take them up on that invitation. We should take them up on that invitation because it will buy the United States crucial time to repair rifts in the Atlantic alliance. And it will hamstring Saddam in the meantime. As I’ve noted in a previous post, a strategy of continuing inspections at least until October has many advantages.

Our President says that he is losing patience. But patience is of the essence here. With patience, we may be able to avoid war. Or we may be able to make war on the most favorable terms with the maximum of international cooperation and support. After all, our optimal strategy is not attacking immediately with a coallition of the willing. It is assembling the full authority of the United Nations behind us and completely isolating Saddam, leaving him with no other choice than to disarm.

The alternatives, in other words, are not simply a stark choice between attacking now or removing our troops and leaving Saddam alone. There are all sorts of intermediate strategies to take. Those strategies may achieve our objectives without war. The fact that Bush does not seem to be interested in intermediate strategies is what I find most worrisome about his conduct in the current crisis.

Nevertheless, we must hope that President Bush has secretly adopted one of those intermediate strategies, even while conveying to the world that he means to go to war by the end of March. If this in fact what he is doing, he’s a damn good poker player. But he certainly has me, and our allies fooled into thinking that he means war come what may. And, perhaps, most importantly, he seems to have Saddam Hussein fooled into thinking that there is nothing he can do to prevent a U.S. attack. That sort of bluffing is counterproductive.

One thing that suggests to me that President Bush's strategic sense isn't working properly is that all signs seem to indicate that he is ready to go to war in March with only a "coallition of the willing." The dangers of this policy are threefold:

(1) Risking that the war will not be over until the weather starts to get really hot in the middle of April.

(2) Splitting the alliance between European powers and the United States that has existed since World War II, and placing Germany, France, Russia, and China together in a common community of interest publicly opposed to the asserted strategic interests of the United States. This will also make it easier for these countries to refuse to help us in the reconstruction of Iraq following our victory.

(3) Undermining the U.N. as an international body that might assist with the reconstruction of Iraq.

Suppose instead that Bush called France's bluff and allowed for several more rounds of inspections to dog Saddam through the summer. Then, assuming that Saddam is still playing cat and mouse, he could press for an attack in October, when the weather turns cold. After six months of inspections, the other members of the security council might well be fed up with Saddam and Bush would have his U.N. support. This would keep the Atlantic alliance together, prevent NATO from unravelling, and bolster the idea of using the U.N. as an international forum for identifying, deterring and punishing rogue states like Iraq. And, one other thing, Bush could fight all fall and winter long without worrying about the weather.

Finally, although this has little to do with the geopolitical interests of the United States, the October strategy would also have political advantages at home. Bush could insist that he was not rushing to war, but gave inspections as much time as our European allies wanted. This would completely undermine Democratic criticisms that he is being unilateral. And he could begin the war in October 2003 and conclude it at the beginning of 2004. This would boost his poll ratings when they are needed most-- just before the 2004 campaign begins. Ending a successful war at the beginning of 2004-- instead of the middle of 2003-- could do wonders for his chances at reelection in 2004.

If the October strategy makes more sense than the March strategy both practically and politically, why isn't Bush following it?

In fact, we don't know that he isn't going to follow it. He still has plenty of time to do so, and announcing more inspections at the last moment will make him look like someone who did his best to avoid war as long as possible, instead of a warmonger, which much of Europe now sees him as being.

Nevertheless, there are two reasons why he may not do so. First, he has assembled a very large contingent of forces in the vicinity. Keeping those forces there is very expensive. It is not clear that he is willing to keep them there for six months. Having mobilized them, it will be costly and difficult to demobilize them without sending the wrong signal to Saddam. If he were really thinking about October rather than March, he probably should have built his forces up more slowly.

Second, Bush has shown in the past that when he wants something, he goes after it, regardless of criticism from those who disagree with him. He has made so many signs that he plans to attack with or without the U.N.'s approval that a turn around at this point would be a true stunner. Moreover, holding back now might be interpreted as a sign that the French have persuaded us, rather than a sign that we have persuaded them. I'm not sure that the Bush Administration wants to send such a signal, either to our allies, or to Saddam.

Nevertheless, I continue to hope against hope that he surprises everyone and gives the inspections more time. Bush may be belligerent and stubborn, but he has also shown himself to be cunning and shrewd on occasion. The October strategy is so much better on so many dimensions that no one-- least of all Bush himself-- can afford to rule it out.

Many people who think that we should not immediately go to war with Iraq are dismayed that Colin Powell, the voice of reason in the Bush Administration, has been made the point man for war at the United Nations. Given that Powell is the author of the Powell Doctrine, which asserts that you don't attack unless you have overwhelming force and a clear exist strategy, why is he pushing us to get into a war without a clear exit strategy-- a war that may have the most disastrous consequences for us and for the world in the next two decades?

The answer is that Colin Powell is not just an ordinary citizen. He is Secretary of State, and he works for George W. Bush. Even if he would prefer to avoid war, he is doing exactly what a rational actor would do given his role and his preferences.

Assume that Powell thinks as follows:

His first choice is to avoid war, because there is no clear exit strategy and the consequences of war are unpredictable and may even be disastrous.

His second choice is to go to war only with full U.N. support, which gets us both the legitimacy of U.N. authorization and the promise of assistance by other countries after the war is over. It also strengthens international cooperation and international institutions for keeping the peace against threats posed by rogue states like Iraq.

His least favorite option is going to war without U.N. authorization, because this will split the Atlantic coallition, undermine NATO, alienate France, Germany, and Russia, send Europe on its own path, and lead to all of the unexpected and dangerous consequences of going to war without a clear way out.

Now let's add one more fact. He knows, and he has known since at least mid January, that the President has made up his mind that he is going to war no matter what happens in the U.N.. Powell argued against war for months, but he lost. So now what should he do?

At this point, he knows he can't get his favorite option. So of the two other possibilities, he has a strong preference for number two-- U.N. authorization and support. That is why he is pressing the case as emphatically as possible. He knows that he can't convince his boss, but maybe, just maybe, he can convince the Security Council, and this will make the war-- if there is to be war-- much less dangerous and destabilizing than it might otherwise be.

So the next time you see Colin Powell's frustration, understand-- he's not play acting. This is for real. He knows that war is coming, and he wants the war to go forward with the least possible chance of disaster. He is being not only a patriot, but also a responsible world citizen. He is doing what he can, given the limitations of the role he is in, to avert or at least ameliorate what he believes may well be a situation of great danger for the United States and the world.

If all this is true, you may ask, why doesn't Powell just escape the constraints of his role by resigning? The answer is that he can't really resign right now. If he does, the hawks in the Administration will win: the United States will go to war without U.N. support, and it will do so sooner rather than later.

Powell is between a rock and a hard place. It is a problem not of his own making, but because he works for a President who is too stubborn and aggressive for his-- and the country's and the world's-- own good. Powell has the misfortune to be Secretary of State to a President who, as I have noted previously, is simply not up to the task of deailng with the complexities of a post-9-11 world. And the rest of us-- in the country, and the world--- are being held hostage to the President's character flaws. It is sobering indeed to recognize that one man's intransigence is about to send the word into a brutal and destructive war. I am not talking about Saddam Hussein. I am talking about George W. Bush, who seems, more than ever, to live up to his title as the most dangerous person on Earth.

As the world hurtles toward a future we cannot predict, Colin Powell must play the hand he has been dealt. He is on the opposite side of this controversy from me. Nevertheless, I admire the man greatly and I wish him God speed.

During the 2000 Election, one of the greatest concerns many had about Governor Bush was that he lacked sufficient knowledge, experience and judgment to engage in foreign policy, and that he would not hold up well in a crisis. What would this fellow do, many people said to themselves, if we ever went to war?

Bush’s response was to point out that he would surround himself by able advisors, who would give him the facts and he would make the tough decisions. His selection of Dick Cheney as his running mate was the great symbol of Bush’s commitment to reliance on seasoned officials.

After 9-11, questions of Bush’s competency seemed to be laid to rest. After all, he did respond to a very big crisis. He mobilized public support for an invasion of Afghanistan, and his generals carried it out successfully, although they did not catch Osama Bin Laden.

But in a sense this proof was misleading. Bush’s response to 9-11 showed that Bush was a man of fierce determination, who would stick to a course and see it through. He showed that if attacked, he would not hesitate to use force to punish those suspected of complicity in the assaults and to threaten to use force against anyone else who dared consider a similar adventure.

Similarly, in domestic politics, Bush’s basic strategy has been to push for very significant policies, and refuse to budge, waiting to see if his adversaries crumble or become divided among themselves. His basic mantra has been “don’t negotiate with yourself;” instead, take the strongest possible stand– whether on tax cuts, judicial appointments, or anything else, and see if the Democrats will stand up to you or whether they will fold.

The problem is that single mindedness, stubbornness, and a willingness to use force and threaten force may be an effective strategy in some contexts, but they are not necessarily the best strategy in all contexts. Current conditions show why Bush’s dominant strategy and tendencies have gotten us into considerable trouble.

His policy toward Iraq has squandered almost all of the goodwill that came our way after 9-11.

He has managed to create the largest antiwar movement *before* a war in recent memory, both in the United States and in Europe.

He has managed to strain our relations with our closest allies in Europe almost to the breaking point, and it is quite likely that he has precipitated a new geopolitical arrangement with America and Europe seeing themselves increasingly as adversaries, rather than as two important entities working together to ensure the spread of democracy and freedom. In the process, he has also succeeded in allying France, Germany and Russia against him.

On the domestic front, his unswerving devotion to larger and larger tax cuts promises to create larger and larger deficits for the foreseeable future, even as he plans to spend more and more money on his military adventures and on the consequences these adventures will inevitably produce.

He has managed to preside over an economy sinking into increasingly dire conditions; his first tax cut has done nothing to ameliorate the bad economic times, and neither he nor his rotating cast of economic advisors have made a plausible case that his favored policies of greater and greater tax cuts for the rich are going to improve things.

If you asked voters in 2000 what they would think of a President who would single-handedly destroy the fifty year old Atlantic alliance with Europe, plunge us into war, send the government into mountains of red ink and fail to deal with mounting economic problems at home, they would probably have responded that such a person was not fit to be President. It would sound to them like the fellow, however good intentioned he might be, was simply not up to the job.

And they would be right.

What obscures this judgment today, I think is, that unlike Jimmy Carter, who presided over a mess not even half as bad as this one, George W. Bush seems to be a man of action. He is determined. He will not be denied. He is utterly convinced that he has God on his side. People tend to associate action and bluster with strong leadership. What this overlooks is that a person can fail to be up to the job of President not because he is too reticent and weak-willed, or because he freezes in a crisis, but because he overreacts and pushes too hard and too fast at the wrong times. George W. Bush’s failings are not neurosis and indecision. They are stubbornness, tunnel vision, narrowmindedness, over-aggressiveness, belligerence, and hubris.

Bush’s failures as President will emerge over time– as our alliance with Europe is damaged, as our economy stagnates, as the costs of war mount. Eventually, people will see that the aggressive singlemindedness they so admired in the wake of 9-11 was ill-equipped to deal with the complexities of a post 9-11 world. They will see that he has done on the world stage exactly what he did before in his career as a businessman: He has made a very big mess, and someone else is going to have to clean that mess up.

This past week a federal judge ruled that the City of New York could prevent an extimated crowd of 100,000 antiwar demonstrators from marching in Manhattan this Saturday to protest the upcoming war against Iraq. Instead, the city will allow 10,000 of them to assemble at a stationary location.

The protestors had requested a permit for more than 100,000 people to march down First Avenue past the United Nations, west on 42nd Street and north to Central Park. The City denied the permit, arguing that the march presented safety, crowd control, and security risks given that the city and the country are at orange alert, the second highest level of security awareness. The City's position was upheld on Monday in an opinon by Barbara S. Jones of United States District Court in Manhattan, and upheld again by a panel of the Second Circuit.

The court argued that the City's parade permit scheme was content netural and reasonable and did not discriminate against the protesters on the basis of their viewpoint. But the case is an example of how formally neutral rules about freedom of speech can have predictable effects in treating different viewpoints differently. in the past year, for example, New York awarded permits for the Puerto Rican Day parade, the Dominican Day parade, and the St. Patrick's Day parade, all of which had crowds over 100,000. The difference was that these parades are scheduled well in advance, and the security risks are predictably smaller than a parade about an issue of major political importance about which fevers are running high. What that means is that protests on political issues of the immediate moment that people disagree about heatedly are disfavored in comparison to parades celebrating, for example, how wonderful it is to be Irish in New York. It's even possible that a parade organized in favor of the war in Iraq, might draw less hostile crowds than an anti-war rally, and so would cause less problems for officials.

I have no reason to believe that the City officials were motivated by opposition to the antiwar cause. However, in general city bureacrats do like things quiet and orderly, and so are likely to view mass protests on controversial subjects as a major headache. Allowing them to avoid awarding permits for such demonstrations is one way in which present first amendment doctrines shape how protest occurs in the United States.

Patriot Act II-- Just When You Thought It Was Safe to Have Civil Liberties

My op-ed on the the Domestic Security Enhancement Act of 2003, popularly known as the "Patriot Act II," appears in today's L.A. Times.

It's hard to say what the worst feature of the new proposals is, but I figure that the one that will spark the most interest in the general public will be the use of presumptions to strip U.S. citizenship from people who violate parts of the the Act. I'm sorry to say that there are a number of precedents that Ashcroft might use to justify the loss of citizenship provisions-- they stem from earlier periods in our Nation's history. For example, for many years, women who married citizens of other countries were deemed to have voluntarily surrendered their U.S. citizenship-- based on the common law fiction that husband and wife are one (and that one is the husband). This was remedied in the passage of the Cable Act in 1922. However, even after the Cable Act, marriage to a Chinese or Japanese national would result in automatic loss of citizenship because they could not become citizens. The rules regarding marriage and loss of citizenship were motivated by a rather dismal combination of racism and sexism.

If you are interested in the issue of loss of citizenship, and have access to law reviews, I recommend Alex Aleinikoff's article, Theories of Loss of Citizenship, 84 Mich. L. Rev. 1471 (1986).

Let me be clear about this: As a cyberlaw professor and a professor of constitutional law, I can unequivocally state that one of the biggest dangers to democracy right now is electronic voting machines. If they are designed properly, they can enhance democracy. But if they are designed poorly, they can facilitate ballot fraud on a scale previously unknown in American history.

The question is not whether electronic balloting is a good thing or a bad thing. It is what kinds of electronic balloting have built in safeguards and checks against electronic fraud, and what kinds don’t. The recently passed Help America Vote Act (HAVA), includes $3.9 billion to help state and local goverments install hi-tech upgrades to their voting technology. What is being overlooked is that not all electronic voting systems are created equal. Some of the ones on the market, perhaps even most, have serious flaws that enable unscrupulous people to alter vote counts and commit massive electoral fraud. Some also are designed to leave no electronic backup or paper trail that would enable state officials to discover vote tampering or conduct recounts.

Several bloggers have begun posting stories about the dangers of poorly designed electronic voting systems. They have been spurred on by revelations that Nebraska Senator Chuck Hagel (R) had failed to disclose that he owns a stake in a company that owns Election Systems & Software (ES&S), a company that makes nearly half the voting machines used in the United States, including virtually all those used in his native Nebraska.

This conflict of interest has led a number of bloggers to speculate whether Hagel’s unexpectedly overwhelming victories in the Nebraska Senate race in 1996 and 2002 were due to artificial enhancements. They point out that ES&S's systems are among those which make it difficult if not impossible to discover electronic voter fraud and conduct recounts. I express no opinion on these speculations, but if you want more information, you can find discussions at Testify, Seeing the Forest, Alas, a Blog, Common Dreams, and Sideshow.

My apologizes to anyone else who posted stories on this issue that I overlooked.

As many of you know, I am a great critic of the Supreme Court’s decision in Bush v. Gore, which handed the presidency to George W. Bush through a particularly unpersuasive argument about when to grant a stay and about what constitutes an appropriate remedy for violates of the Equal Protection Clause. However, I also have said in print that I don’t think that the opinion’s holding that the Equal Protection Clause applies to vote tabulations is all that crazy; in fact it makes some sense. It extends the guarantee of equal protection from how voting districts are drawn to how votes are tabulated.

I also pointed out two other things, however

1. One problem with Bush v. Gore’s equal protection holding is that it did not carry its equal protection reasoning to its logical conclusion. The greatest problem of equality may stem not from hand counts but from unequal access to technologies that produce different degrees of reliability in vote counts.

2. Bush v. Gore seems to be premised on suspicion that Florida judicial officials were not being consistent in their hand counts; i.e., the Court, without directly saying it, was suggesting that perhaps the inconsistencies were not random, but might be politically motivated.

Putting these two points together, I submit that if Bush v. Gore is not simply a device concocted by five Justices to put Republicans in office, it should also stand for the proposition that the states and the federal government may not install voting technologies with a high degree of unreliability or a significant risk of voting fraud if there are other, equally available technologies at roughly the same cost that are more reliable and have safeguards against voting fraud.

In other words, although I hate and despise the manipulation of remedies that produced the actual result in Bush v. Gore, I think that we should take the Equal Protection holding of Bush v. Gore completely seriously. And I think that state and local governments should too. They should immediately demand that the technology companies they deal with install fail safe mechanisms to ensure voting reliability and prevent voting fraud, and if these companies refuse to do so, on the grounds that their data is protected by trade secret or other intellectual property rights, these contracts should be voided on the grounds that states may not install unconstitutional voting systems.

I’m being quite hardnosed on this, but it’s important to be hardnosed. There are lots of flaws in the American system of elections, but most of these flaws only matter every now and then in very close elections, like the crazy rules about the Electoral College and what happens if nobody gets a majority in the Electoral College. But the problems that electronic voting machines present are likely to occur in virtually every election held in this country-- federal, state and local -- from this day forward. If we don’t want our democracy to become a mockery, we have to pay the extra cost now to make sure our voting technologies are safe and adequate for the future.

Everybody in the U.S. is piling on the French these days. Tom Friedman is exasperated with their changing stances on Iraq. He wants to kick them out of their permanent seat on the U.N. Security Council and replace them with India, the world's largest democracy. And there are lots of great jokes making fun of the French right now, (which I am ashamed to admit I am enjoying immensely, having spent altogether too much time studying French philosophy in my misspent youth). Numerous explanations abound for their intransigence, including their national character, their irresponsibility, their flightiness, their ingratitude, and a whole host of other flaws.

But the French are also the country that gave us Descartes, Voltaire and the Enlightenment (ok, forget about Derrida). They are the masters of sang froid, brute realism, ironic detachment, and cold unsentimentality. Are they really all that crazy? Does their intransigence make any sense at all?

It all depends on what you think the purposes of the military buildup and the U.N. inspection regime are. If the point is to get all of the countries of the world together through the auspices of the U.N. to scare and threaten Saddam Hussein into submission, then it would make sense for France to jump on board and present Hussein with a unified threat by the international community: disarm or be deposed. That is, if what this is about is a game of chicken, then the French should not be intransigent. They should immediately help the U.S. present a unified front, which may have the salutary effect of strengthening the United Nations as an international peacekeeper in future conflicts against rogue states. That's something many Europeans would like, because it would draw the U.S. ever further into a multilateral way of conducting its foreign policy, and it would strengthen international institutions in which the French and other Europeans believe they will have greater influence in the long run.

The problem is that the French fear that they don't have any control over what the United States will do once they sign on. The French want to see how far they can push Hussein without going to war; but they may fear (and rightly so) that Bush isn't playing that game. They fear that he is determined to go to war regardless of what Hussein does. If that's so, then France's preferred strategy-- what Tom Friedman earlier called Chicken a'L'Iraq-- isn't available. You can't threaten Hussein to get him to back down, because the U.S. won't pull back at the brink, it's going to war whatever Hussein does, and so Hussein has no incentive to do anything but wait and prepare for war.

Thus, joining the U.S. doesn't get France its preferred strategy. The question is whether holding back approval is more likely to do so. But that's also a dangerous game, because if the U.S. gets tired of waiting for the French to join in, it may go ahead and attack with its "coallition of the willing" sometime near the beginning to middle of March. That would be a worse result: No clear U.N. approval, no precedent for international cooperation against rogue states.

However, the French may be reasoning as follows: The longer we hold out, the more the U.S. may be willing to offer us a war and post-war strategy more to our liking. The U.S. is going to war no matter what we do, so we can't get our first best strategy. But we might be able to get our second best strategy-- both during the course of the war and in the occupation thereafter-- by being a royal pain in the butt until the U.S. listens to us.

This seems to me the best explanation of what is going on right now. If all of the other countries in Europe thought the same way the French did, the U.S. would have a real problem on its hands. But most of the other countries in Europe see no particular advantage in holding out. They figure that they are in better shape signing on early than signing on late. The French, however, think that signing on late will given them additional concessions. That's why they are holding out even though everyone else is rushing to sign on, and why the jokes are flying. But nobody knows yet who will be laughing five years from now.

A fascinating discussion of the distribution of choices as the number of choices in a network increases, from Clay Shirky, via Instapundit. The power law idea tends to explain why choices on the Internet tend to cluster around a relatively small number of sites.

This is the second of two posts on Eldred v. Ashcroft and how the result is similar to Bowers v. Hardwick. The first post can be found here.

In today's post, I want to talk about the results in Eldred and Bowers from the standpoint of how social movements influence constitutional change through their influence on party politics.

There are two basic ways that social movements can effect constitutional change. The first is through Article V amendment, which is quite difficult to do: It requires approval by two thirds of each house of Congress and ratification by three fourths of the states. Thus, the more common way for social movements to influence constitutional law is through influencing judicial interpretations of the Constitution made by Article III courts.

There are two basic ways to achieve favorable interpretations by the federal judiciary. The first is through the party system; the second is through an appeal to elite values.

Although social movements are the great source of constitutional innovation, they will not succeed unless they gain the support of national political parties. The success of social movement interpretations of the Constitution depends on the successful forging of lasting connections between the social movement and the national party system.

For this reason, the constitutional claims of social movements tend to succeed or fail to the extent that they are taken up by national political parties. To be sure, sometimes a party is nothing other than the political wing of a social movement. That describes the Republican Party of the 1860's, which included many free soilers and abolitionists. Sometimes a social movement successfully takes over a political party, as occurred with the Democrats in the 1930's and the Republican party in the 1980's. In both of these cases, the fate of the social movement is clearly tied to the fate of the electoral success of the party. But more often, social movements do not take over a party. They compete for attention and influence with many other interests in a political party, and this greatly affects their success in shaping constitutional norms.

Although social movements play an important role in developing innovative constitutional claims, the party system plays an even more crucial role in filtering, coopting and translating the claims of social movements, including their constitutional claims. Political parties aggregate the claims of social movements with other claims in order to build national political support. In the process, social movement claims get restated, limited, translated into more politically palatable terms, or even put on the back burner by politicians and other party operatives. Equally important, political parties control access to the system of judicial appointments.

To put it bluntly, when constitutional claims of social movements are presented before courts, it matters a great deal whether the movement’s representatives have friends in high places, and in particular, on the federal bench. The more friends they have, the more likely they are to win. The fewer friends they have, the more likely they are to lose. And the most likely method of getting a social movement’s friends on the federal bench is through the judicial appointments process. So unless the social movement has enough clout to push its favored candidates through the appointments process, it is a matter of luck whether the jurists it encounters will be sympathetic to its highly innovative arguments. Indeed, the more innovative the arguments for change in constitutional norms, the less likely they will succeed without ideological allies in high places.

The second way that social movements can influence judicial interpretation of the constitution is through appeals to elite values. Judges tend to be chosen from elite ranks and therefore tend to share values that most elites share regardless of party. This is the best explanation of the Supreme Court’s decisions in Griswold and Roe v. Wade. In the 1960s and early 1970s, elites in both parties tended to support contraceptive rights. In fact, of Richard Nixon’s four appointments to the Supreme Court, three joined in the decision in Roe v. Wade. It was not until the mid 1970's that pro-life voters began moving into the Republican Party, and the issue of abortion became a clearly partisan issue, with Democrats becoming mostly pro-choice and Republicans mostly pro-life. At this point Democratic judicial appointees began to become clearly more pro-choice than judges appointed by Republicans.

These factors help explain the result in Bowers v. Hardwick. The gay rights movement had little clout in either political party in 1986, so its biggest chance at success was through an appeal to elite values along the lines of Griswold or Roe. That was good enough for four votes-- two liberal democrats (Brennan and Marshall) and two moderate republicans (Blackmun and Stevens). (Actually, it was almost good enough for five votes, because another moderate Republican, Lewis Powell, almost joined). Seventeen years later, the gay rights movement has started to show some real clout in both parties, although for right now the influence is much greater in the Democratic Party than the Republican Party because of the influence of religious conservatives in the Republican Party. (One should not, however, discount the presence of libertarian and moderate conservatives in the Republican Party who support gay rights as well as abortion). In the long run, I expect that the movement’s growing influence in both parties will translate into more and more judges sympathetic to gay rights.

From this perspective, the result in Eldred v. Ashcroft is also not very surprising. As of now, the issues that the free culture movement is concerned with do not have much influence in either political party. Indeed, neither political party seems to think that these issues will draw much voting support. If anything, politicians in both parties are more likely to support Big Media because of its lobbying power and campaign contributions. As a result, the best shot for victory in Eldred v. Ashcroft was through an appeal to elite values. But elites– particularly older elites– either do not understand the issues that the free culture movement raises or are divided over them. As a result, the plaintiffs in Eldred were able to manage only two votes in their favor.

Eldred’s lawyer, Larry Lessig, believed that he could connect his constitutional challenge to the Sonny Bono Act to the success of the conservative social movements of the 1980's. Those movements succeeded in placing several conservatives on the Supreme Court and many more in the federal judiciary. These conservative jurists loudly defended the principle of limited federal powers, Lessig reasoned, so perhaps they might accept an argument for limited federal powers under the Copyright Clause.

The problem with this strategy is that it took the doctrinal arguments of the conservative justices much too seriously. It did not sufficiently recognize that what lies behind constitutional law is constitutional politics. Conservative jurists on the Supreme Court offer arguments for limited federal power for largely symbolic and ideological reasons that are connected to the goals of the conservative social movements of the 1970's and 1980's. That is why those judges and Justices were put on the federal bench in the first place. Arguments for limited federal power allowed the conservative justices to strike down or limit the reach of federal laws-- particularly federal civil rights laws-- that they and other conservatives don’t particularly like. The argument for limited federal power also allowed the conservative Justices to strike a symbolic blow for state’s rights.

The Copyright Term Extension Act does not fit into these categories. It does not symbolically trench upon interests of the states, and it is not a liberal civil rights measure. It was generally understood, for better or worse, as a protection of property rights, and many conservatives tend to think that protecting property rights is a good thing. Perhaps, as Lessig hoped, genuine believers in limited federal government would have found his arguments attractive. But the result in Eldred simply demonstrates that the best explanation of conservative judicial behavior is not pursuit of limited federal government per se but rather pursuit of the policy preferences of the conservative social movements that currently dominate the Republican Party, and were responsible for putting those conservative judges on the federal bench.

The appeal to the conservative values of the Rehnquist Court failed because those values do not mesh with the goals of the free culture movement. But that does not mean that, in the long run, the two parties will not embrace some of those values. I’ll have more to say about how that might happen in my next post on this subject.

The Center for Public Integrity reports that Attorney General John Ashcroft is considering new legislation to give the federal government even greater powers over domestic intelligence gathering, while limiting judicial review of government action and restricting public access to information about what the government is doing. The Justice Department has not yet announced the new proposals, but apparently early drafts have already been completed. One of the most disturbing features of the proposed Domestic Security Enhancement Act of 2003 is that American citizens could lose their citizenship and be expatriated if they provide "material support" to any group the Attorney General has designated as a "terrorist organization." The idea, apparently, is that one who provides "material support" to such an organization-- even if such support is otherwise lawful-- is presumed to have intended to relinquish citizenship (because his intent can be inferred from his conduct) and therefore may be expatriated.

This gives new meaning to the expression, "America-- love it or leave it."

On a radio call in show, Rep. Howard Cobble (R. N.C.) who is chair of the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security, rejected the suggestion of a caller that Arabs should be placed in internment camps. The situation today is different than in World War II, he explained. The internment of Japanese-American U.S. citizens during World War II was justified in order to protect them.

On Thursday, in further explanation of his remarks he stated: "I certainly intended no harm or ill will toward anybody. I still stand by what I said ... that, in no small part, it (internment) was done to protect the Japanese-Americans themselves.

Hmm, that's not how I remember the history. Eric Muller agrees, and he has a nice post summarizing the facts.

I’m currently working on a scholarly article on how social movements succeed or fail in shaping American constitutional law. As I thought about the recent Eldred case, which refused to hold the Copyright Term Extension Act unconstitutional, I was struck by the similarities to Bowers v. Hardwick, the 1986 case in which the Supreme Court refused to hold that same sex sexual relations were constitutionally protected. I don’t mean to say that both decisions were equally unjust (or equally just). Given my politics, and my views about constitutional law, I happen to think that Bowers is a more troubling opinion than Eldred, but I understand that people may disagree, and some probably think that both cases are perfectly rightly decided.

Rather, what struck me about both cases is that both involved unsuccessful first attempts by a social movement to get the Supreme Court to accept some of the movement’s constitutional claims. Bowers is the first case in which the Supreme Court seriously considered and discussed at length the arguments of gay rights advocates; Eldred is the first case in which the Supreme Court has grappled with the emerging social movement for weaker intellectual property rights and “free culture.” In both cases, the Supreme Court decision reflected the beliefs (or prejudices) of a very large number of Americans who had not been exposed to the arguments of the social movement, and in both cases people feared that the social movement’s goals had been set back for many years by the loss. But, in both cases, I would suggest, such fears are unfounded.

Indeed, what Bowers produced was a resurgence of social movement activism by the gay rights movement. Unable to make their case in the federal courts, gay rights supporters shifted their strategies to influencing state, local and federal legislators and executive officials. Meanwhile, social attitudes changed, as there is a strong but not perfect correlation between the year that a person was born and their acceptance of homosexuality. Although not all young people support gay rights, more do than in previous generations. One suspects that in time, a very large number of Americans will accept that homosexuals deserve basic equal rights, or, at the very least, that same sex relations should not be criminalized.

By the time that the Supreme Court took its next major gay rights case in 1996, Romer v. Evans, the political landscape had changed greatly. A 5-4 majority struck down a Colorado state amendment that had been designed to preempt city and local ordinances protecting gay rights. What is important about Romer is that if you look at the new justices added since 1986 (Scalia, Kennedy, Souter, Thomas, Ginsburg, and Breyer), four of them were in the majority in Romer, and two in dissent. That was enough to tip a 4-5 decision to a 5-4 decision. One should not assume that there are five clear votes for gay rights on the present Court; Boy Scouts v. Dale, which upheld the right of the Boy Scouts to fire an openly gay scoutmaster, went the other way. But it seems clear that the political and legal climate is changing in favor of gay rights. The Supreme Court has recently taken cert in Texas v. Lawrence, which asks whether Bowers v. Hardwick should be limited or overruled. It is quite likely that the Supremes took this case in order to overrule Bowers or at least severely cut back on it. Moreover, as I hope to discuss in my next post, it is altogether possible that future justices– even those appointed by Republicans– will be more sympathetic to gay rights claims than Burger (a Republican conservative) and White (a Democratic moderate) were in 1986.

In fact, the best evidence that times are changing is the vehemence with which the religious right has fought what it calls the “homosexual agenda.” When most Americans agree that homosexuality is illicit, it is not necessary to make such a fuss; rather majoritarian social mores are sufficient to lead judges and legislators to reject the claims of social movement advocates. But as the social movement gains steam, and convinces a larger and larger share of the public that it is making sense, opponents tend to become increasingly anxious, and you see energetic reaction and attempts at backlash. For me, the sign that the gay rights movement had drawn blood was the Defense of Marriage Act signed by President Clinton. The very notion that a state would legalize sex marriage was unthinkable in 1986; by 1996 religious and social conservatives were genuinely worried that it would happen in Hawaii, Alaska, or some place else. As it turned out, they were right. Vermont’s Supreme Court struck down its restriction on the right to marry as unfair to gays, and in response the legislature passed the nation’s first civil unions bill. The more vehement the attempt to stamp out a social movement once and for all, the clearer it is that the social movement is gaining ground.

When the justices first heard Bowers, most of them had very little acquaintance with the gay rights movement, and the AIDS epidemic was still surging. Much of America regarded homosexuality as immoral or unnatural or at least as abnormal. The Court’s treatment of the issue reflects these presuppositions. Chief Justice Burger and Justice White are said to have made distasteful remarks about gays during the Supreme Court conference following the argument, and their opinions show a palpable insensitivity to the rights of gays. Justice Powell, who cast the deciding fifth vote in Bowers, later said that in hindsight he regretted his decision, and that he might have changed his vote if he had ever met a gay person. This suggests that for people of Powell’s age, it was possible to spend one’s entire life without ever openly confronting homosexuality. In fact, Powell had met many gay people in his life, and had hired a number of gay clerks, including one clerk during the very term Bowers v. Hardwick was decided. He just didn’t know this, or else didn’t want to know.

There are interesting parallels to Eldred here. The free culture movement is relatively new. Although a fair number of young people tend to be sympathetic with it (because of their experience with things like peer-to-peer file sharing, the use of intellectual property to create their own websites and/or works of art), lots of other people, and in particular establishment types tend to see the movement as dreamers or pirates who are opposed to law and order, property rights and capitalism. The Supreme Court is stocked by Justices who are, to put it mildly, not technophiles; they don’t share the same cultural experiences and assumptions that motivate the free culture movement. The conservatives believe in protecting property rights and they generally don’t like innovative first amendment arguments unless they protect the rights of Christian conservatives, or business organizations. Thus it’s not surprising that there was very little sympathy for the arguments in made Eldred.

Losing in the courts in Eldred, just like Bowers, will lead social movement members to push for legislative and administrative reform. In large part this may be a good thing; social movements tend to atrophy or lose force if they rely too heavily on courts to push their constitutional claims and policy positions. An important difference, however, is that intellectual property law is largely federalized. That means that free culture advocates cannot easily begin in state and local fora, in the way that gay rights advocates did. They must concentrate their efforts largely in Congress and federal administrative agencies. That puts them at a comparative disadvantage. The fact that gay rights advocates could move to the states exemplifies one of the great advantages of federalism– not the federalism currently preached by the Supreme Court– which is largely used to protect states who wish to violate civil rights laws– but the basic structural idea that there are multiple legislative fora in which to press for social movement reform.

Finally, time is on the side of the free culture movement, just as it is on the side of the gay rights movement. The more comfortable people are with the new digital technologies, the more they will come to understand the value of arguments free culture advocates are making, even if they do not accept them in all respects. One suspects that we will also see increased vehemence in the attacks directed against the free culture movement as it gains support. My prediction is that the free culture movement's claims will win out, although not necessarily in precisely the way they are articulated today. No social movement gets everything it wants, but successful ones often lead to important changes in society. I think the free culture movement may, in time, have a profound effect on how we live our lives in the future.

In my next post on this topic, I’ll continue my discussion of the similarities between Eldred and Bowers. In particular, I will discuss the role that political parties play in the success or failure of social movements, both through legislative reforms and through the appointment of judges or justices who are sympathetic to the claims of social movement advocates.

Note-- I've added the second post following the first because the permalink does not appear to be working properly.

How Eldred v. Ashcroft is like Bowers v. Hardwick, Part II

This is the second of two posts on Eldred v. Ashcroft and how the result is similar to Bowers v. Hardwick. The first post can be found here.

In today's post, I want to talk about the results in Eldred and Bowers from the standpoint of how social movements influence constitutional change through their influence on party politics.

There are two basic ways that social movements can effect constitutional change. The first is through Article V amendment, which is quite difficult to do: It requires approval by two thirds of each house of Congress and ratification by three fourths of the states. Thus, the more common way for social movements to influence constitutional law is through influencing judicial interpretations of the Constitution made by Article III courts.

There are two basic ways to achieve favorable interpretations by the federal judiciary. The first is through the party system; the second is through an appeal to elite values.

Although social movements are the great source of constitutional innovation, they will not succeed unless they gain the support of national political parties. The success of social movement interpretations of the Constitution depends on the successful forging of lasting connections between the social movement and the national party system.

For this reason, the constitutional claims of social movements tend to succeed or fail to the extent that they are taken up by national political parties. To be sure, sometimes a party is nothing other than the political wing of a social movement. That describes the Republican Party of the 1860's, which included many free soilers and abolitionists. Sometimes a social movement successfully takes over a political party, as occurred with the Democrats in the 1930's and the Republican party in the 1980's. In both of these cases, the fate of the social movement is clearly tied to the fate of the electoral success of the party. But more often, social movements do not take over a party. They compete for attention and influence with many other interests in a political party, and this greatly affects their success in shaping constitutional norms.

Although social movements play an important role in developing innovative constitutional claims, the party system plays an even more crucial role in filtering, coopting and translating the claims of social movements, including their constitutional claims. Political parties aggregate the claims of social movements with other claims in order to build national political support. In the process, social movement claims get restated, limited, translated into more politically palatable terms, or even put on the back burner by politicians and other party operatives. Equally important, political parties control access to the system of judicial appointments.

To put it bluntly, when constitutional claims of social movements are presented before courts, it matters a great deal whether the movement’s representatives have friends in high places, and in particular, on the federal bench. The more friends they have, the more likely they are to win. The fewer friends they have, the more likely they are to lose. And the most likely method of getting a social movement’s friends on the federal bench is through the judicial appointments process. So unless the social movement has enough clout to push its favored candidates through the appointments process, it is a matter of luck whether the jurists it encounters will be sympathetic to its highly innovative arguments. Indeed, the more innovative the arguments for change in constitutional norms, the less likely they will succeed without ideological allies in high places.

The second way that social movements can influence judicial interpretation of the constitution is through appeals to elite values. Judges tend to be chosen from elite ranks and therefore tend to share values that most elites share regardless of party. This is the best explanation of the Supreme Court’s decisions in Griswold and Roe v. Wade. In the 1960s and early 1970s, elites in both parties tended to support contraceptive rights. In fact, of Richard Nixon’s four appointments to the Supreme Court, three joined in the decision in Roe v. Wade. It was not until the mid 1970's that pro-life voters began moving into the Republican Party, and the issue of abortion became a clearly partisan issue, with Democrats becoming mostly pro-choice and Republicans mostly pro-life. At this point Democratic judicial appointees began to become clearly more pro-choice than judges appointed by Republicans.

These factors help explain the result in Bowers v. Hardwick. The gay rights movement had little clout in either political party in 1986, so its biggest chance at success was through an appeal to elite values along the lines of Griswold or Roe. That was good enough for four votes-- two liberal democrats (Brennan and Marshall) and two moderate republicans (Blackmun and Stevens). (Actually, it was almost good enough for five votes, because another moderate Republican, Lewis Powell, almost joined). Seventeen years later, the gay rights movement has started to show some real clout in both parties, although for right now the influence is much greater in the Democratic Party than the Republican Party because of the influence of religious conservatives in the Republican Party. (One should not, however, discount the presence of libertarian and moderate conservatives in the Republican Party who support gay rights as well as abortion). In the long run, I expect that the movement’s growing influence in both parties will translate into more and more judges sympathetic to gay rights.

From this perspective, the result in Eldred v. Ashcroft is also not very surprising. As of now, the issues that the free culture movement is concerned with do not have much influence in either political party. Indeed, neither political party seems to think that these issues will draw much voting support. If anything, politicians in both parties are more likely to support Big Media because of its lobbying power and campaign contributions. As a result, the best shot for victory in Eldred v. Ashcroft was through an appeal to elite values. But elites– particularly older elites– either do not understand the issues that the free culture movement raises or are divided over them. As a result, the plaintiffs in Eldred were able to manage only two votes in their favor.

Eldred’s lawyer, Larry Lessig, believed that he could connect his constitutional challenge to the Sonny Bono Act to the success of the conservative social movements of the 1980's. Those movements succeeded in placing several conservatives on the Supreme Court and many more in the federal judiciary. These conservative jurists loudly defended the principle of limited federal powers, Lessig reasoned, so perhaps they might accept an argument for limited federal powers under the Copyright Clause.

The problem with this strategy is that it took the doctrinal arguments of the conservative justices much too seriously. It did not sufficiently recognize that what lies behind constitutional law is constitutional politics. Conservative jurists on the Supreme Court offer arguments for limited federal power for largely symbolic and ideological reasons that are connected to the goals of the conservative social movements of the 1970's and 1980's. That is why those judges and Justices were put on the federal bench in the first place. Arguments for limited federal power allowed the conservative justices to strike down or limit the reach of federal laws-- particularly federal civil rights laws-- that they and other conservatives don’t particularly like. The argument for limited federal power also allowed the conservative Justices to strike a symbolic blow for state’s rights.

The Copyright Term Extension Act does not fit into these categories. It does not symbolically trench upon interests of the states, and it is not a liberal civil rights measure. It was generally understood, for better or worse, as a protection of property rights, and many conservatives tend to think that protecting property rights is a good thing. Perhaps, as Lessig hoped, genuine believers in limited federal government would have found his arguments attractive. But the result in Eldred simply demonstrates that the best explanation of conservative judicial behavior is not pursuit of limited federal government per se but rather pursuit of the policy preferences of the conservative social movements that currently dominate the Republican Party, and were responsible for putting those conservative judges on the federal bench.

The appeal to the conservative values of the Rehnquist Court failed because those values do not mesh with the goals of the free culture movement. But that does not mean that, in the long run, the two parties will not embrace some of those values. I’ll have more to say about how that might happen in my next post on this subject.

I just finished participating in the conference that I organized along with Yale Law Women to commemorate the thirtieth anniversary of Roe v. Wade. The sessions were packed and lively. The second two sessions were devoted to the question of "What Roe v. Wade Should Have Said." The panelists, all prominent American constitutional law professors, were asked how they would have written the opinon in Roe v. Wade (and the companion case of Doe v. Bolton) if they knew then what they know now. They were only permitted to cite sources available as of January 22nd, 1973, when Roe and Doe were originally decided.

One of the highlights of the session was a spirited exchange between the University of Minnesota's Michael Stokes Paulsen and my colleage Jed Rubenfeld on the status of the fetus-- or, as they put it, over whether an acorn is an oak tree. Mike Paulsen's strongly pro-life views, delivered to an audience that I presume was probably more pro-choice than pro-life, had a powerful effect.

My colleague Akhil Amar took a very interesting position-- he would strike the Texas law in Roe down because it was passed at a time when women didn't have the right to vote. What would happen if the Texas legislature then repassed an identical statute? Well, it would depend on whether the Texas Legislature had a representative number of women in it. Well, Akhil was asked, what if Texas had an initiative or referendum on the same law, so that women could vote on it? At that point, he suggested, he didn't know what he would decide. He would have to see what happened. And what about the Georgia statute in the companion case of Doe v. Bolton, which was passed in 1968, when women had the right to vote? The state courts should be allowed to clarify the meaning of the statute, Akhil explained.

Some members of the audience, I suspect, thought that this was taking the easy way out. What it suggests to me is that Akhil really doesn't believe in a substantive right to abortion, but rather is interested only in procedural guarantees of due process. But that leaves open the very interesting question whether the same logic applies to other statutes that effect women's rights-- i.e., they aren't necessarily unconstitutional as long as women have the right to vote.

Another very interesting feature of the discussion among the members of the mock Supreme Court was whether courts should push legislatures to be proactive in creating a world that respects women's work and the social and financial hardships of motherhood. Both my colleague Reva Siegel and Robin West of Georgetown pointed out that Congress had responsibilties to pass legislation enforcing sex equality norms that courts could not enforce on their own. Both are strongly pro-choice. Nevertheless, the nature of abortion regulation, they insisted, looks very different if there is a significant set of commitments by state legislatures or by the federal governrment to the support of mothers and to the welfare of children *after* they are born.

Anita Allen-Castellitto of Penn Law School argued that there should be no statutorily prescribed time limit on when women could get abortions; rather, legislatures should rely on doctors to act as a gatekeeper. Doctors won't perform very late abortions unless the woman's life is really at stake.

Jeffrey Rosen of George Washington Law School (and the New Republic) supports abortion rights as a policy matter, but argued that the courts should have stayed out of it. Both he and I considered the idea that Roe has been a political disaster. We both argued that it has strongly shaped contemporary American politics. Jeff thinks it has badly skewed the judicial appointments process. I think that it has been a boon to the Republican party, but not necessarily bad for the country. Mark Tushnet of Georgetown doubted that its political effects have been as great as Jeff and I believe. He argued that Ronald Reagan would have been elected in 1980 whether or not Roe v. Wade had been decided.

Mark's opinion for the conference was, literally, Justice Douglas's concurring opinion in Roe. His point was that the thinking of the Justices in 1973 was much more constrained by their times than we generally imagine, and that what they produced made much more sense than we usually give them credit for given who they were and the world in which they lived.

This week’s I Ching question comes from Joyce Park, who writes with pride “Having been born in the only country with I Ching symbols on the flag, I’m game!” (That’s South Korea, for those of you who were wondering.)

Her question is:

“Will the media companies seek a further extension of copyright law by 2019?”

Generally speaking one shouldn’t ask the I Ching questions that one already knows the answers to ;-). But what the heck, perhaps the Book of Changes has some additional wisdom to share with us.

I consulted the Book of Changes, and I received hexagram 13 (Fellowship with People), line 3 moving.

Here is the text:

Nine in the third place:

Hiding armed troops in the thicket,
He climbs the high hill.
Yet for three years he does not rise up.

The commentaries on the line read:

In the third line, the group’s unity has been compromised by mistrust. The participants have developed divergent interests and goals. Cooperation has given way to competition. Each person has his own secret ambitions and seeks to dominate the others. Hence the text says, “[h]iding armed troops in the thicket.” Moreover, knowing his or her own mental reservations, each person suspects the others of having similar designs, for when people are no longer trustworthy, they no longer trust anyone else. Each person begins to spy on the others, hoping to catch them in their duplicity. And all of the remarks and actions of others, however innocent, can be interpreted as signs of impending betrayal or ambush. Cycles of mutual distrust and alienation grow. As a result, the group can make no progress.

You must break the cycle of mistrust before it becomes too pronounced. Reexamine your goals and your hopes for the group. Secrecy must give way to open discussion. A new agreement on the goals and aims of the fellowship must be forged in light of changed circumstances so that trust can be reestablished and bonds of loyalty renewed. If the participants can recognize that they are indeed working on a joint enterprise, they will be able to live with disagreements about how to proceed.

The theme of this line is the mistrust generated when people try to grab everything for themselves. Then they spread distrust and antagonism in society, and destroy the common bonds that make successful cooperation possible. For someone like me, who thinks that our culture is a common product that we all share in and benefit from, the message is quite clear. Media companies are in the business of maximizing profits, so they will probably try to grab as much as they can, but this is not necessarily a good thing. Rather, we have to come to a new bargain about culture in the digital age that will allow media stakeholders to make a living but will also benefit society as a whole. The current path we are traveling– which simply encourages companies to push for greater and greater control over media products with less and less concern about the public domain-- does not accomplish this.

At the same time, people who want freer access to media products (and I count myself in this group) must behave responsibly and give media companies reasons to trust that they will not be taken unfair advantage of. They should work toward positive legal and technical solutions that help establish and enforce a new social bargain about culture. It's important to understand that the current policies of media companies seeking expansive intellectual property protections and control over consumers are not simply motivated by the desire to make money; they are also motivated by the fear and uncertainty produced by the disruptive effects of new digital technologies. Only a new bargain that respects the interests of all will prove stable and produce beneficial cooperation in the long run.

If you have a question you would like posed to the I Ching, please send it along by e-mail. I’ll pick a question every week or so and publish the results online. Please don’t ask questions you wouldn’t want generally discussed in public. And please don’t ask about stock tips; the Oracle has been warned more than once about the rules against insider trading.

In an earlier post, I explained why the Supreme Court's decision in Eldred v. Reno placed the constitutionality of the Digital Millenium Copyright Act in doubt. Guy Pessach, one of the fellows at my center, the Information Society Project, has offered yet another reason why the DMCA is unconstitutional. Eldred assumes that Congress can extend the length of copyrights, as long as Congress does not try to create copyrights of indefinite or perpetual duration. In this sense, Eldred still holds that Congressional power is limited. However, the DMCA has no time limit. It makes it a crime to interfere with copyright management schemes even after the material protected passes into the public domain. If Congress has power to pass the DMCA, it is not under the Copyright Clause.

We can take Guy's argument one step further. The first amendment objection to the DMCA is that by restricting access to fair use, Congress has created a new property right that allows copyright owners to do an end run around fair use, effectively shrinking the public domain. In addition it extends that property right to prohibit the use and dissemination of technologies that would protect fair use and vindicate fair use rights. In like fashion, one can also argue that the DMCA creates new property rights that allows people the right to do an end run around the limited times requirement. Because this “alters the traditional contours of copyright protection,” it violates the First Amendment, even though Congress would be perfectly free under Eldred to extend the copyright term by a specific and determinate amount.

My op-ed on Roe and the Republican party's coalition appears in today's New York Times.

The Times, like most newspapers, gives you only about 700 words to make your argument, so I thought I’d add a few additional explanations about three important points that the op-ed raises. The first is how judicial review affects political coallitions, the second is how the Supreme Court diverts political heat onto itself, and the third is the special place of religion as a divisive issue in politics. These three ideas are analytically distinct, but they all apply to Roe, and for lack of space, they all had to be explained together in the op-ed. I'd like to separate them out in this post.

1. Judicial Review and Party Coalitions. The basic idea that shifting policy agendas shifts party coalitions is nothing new. The classic explanation of how judicial review preserves or destroys party coalitions by shifting policy agendas was made by Mark Graber in his article "The Nonmajoritarian Difficulty," published in 1993, and the basic idea about how shifting policy agendas fractures political coalitions was explained by William H. Riker in his book The Art of Political Manipulation (1986). Both used the Supreme Court’s decision in Dred Scott v. Sandford as an example, and Graber showed how the same logic applied to Roe.

The basic idea is this: Through its exercise of judicial review, the Supreme Court can either keep party coalitions together or it can fracture them. Roe is an example of the former, Dred Scott is an example of the latter. Both involve striking down statutes, but the issue is not really whether the Court strikes down something or upholds it. It is whether the decision keeps the party system together or blows it apart. Roe helps keeps the contemporary party system together, Dred Scott blew the party system of its day apart.

Before Dred Scott, the Democratic Party was amazingly successful at winning the Presidency. It did so because it was a coalition of Southern Democrats who were devoted to the preservation and spread of slavery, and Northern Democrats, who cared less about the issue. Instead, they dealt with the question through a series of compromises. Democrats in the North instead pushed for the idea of popular sovereignty. Each state and, more importantly, each territory could decide for itself whether it wanted to be free or slave. Dred Scott made this position impossible, because it held that Congress could not ban slavery in the territories, and that slaveowners had the right to bring slaves into the territories. This split the Democratic Party in two, destroying its chances at winning the presidency. As a result, Abraham Lincoln won the White House. Unable to accept the Republican Party’s control, South Carolina seceded, beginning the Civil War.

From the standpoint of the Democrats, Dred Scott was a terrible blunder because the Supreme Court made it impossible to form a working majority within the Democratic Party. On the other hand, if you think that slavery would never have been resolved peacefully, it was probably better that the Court wreck the coalition and get on with the War. In the casebook that Paul Brest, Sandy Levinson, Akhil Amar, and I edit, we have this to say about the timing issue:

If one objects to Taney's opinion on the grounds that it hastened war, consider that a decision freeing Dred Scott would surely have generated intense opposition by the already secession-prone Southerners, who might not have waited until 1860-61 to attempt secession. Consider also that the North might not have won a war begun in 1857, especially because of its lack of military preparedness and the fact that its Commander-in-Chief would have been the feckless James Buchannan rather than Abraham Lincoln. Is this a good reason to support the result in Dred Scott--that it bought the North valuable time? Or is your view that justice, i.e., the repudiation of slavery, should be done (and, indeed, is required by the Constitution) though the heavens (or, at least, the Union) fall?

Another recent example of how Supreme Court decisions affect coalition formation is affirmative action. The Democratic party includes African Americans, Latinos and white liberals who strongly support affirmative action, and moderates who are iffy on affirmative action. In this case, its possible that by applying strict scrutiny to affirmative action programs, the conservative Justices in the Supreme Court are actually keeping some people in the Democratic Party, because they limit how far the left wing of the party can push for affirmative action. The logic is very similar to that in Roe, with the parties reversed. If Croson and Adarand were overruled, it might not work to the advantage of the Democrats.

But the issue on the table right now is not overturning those decisions; It is extending them by overruling Bakke. That shifts the political agenda in a different direction than overruling Croson and Adarand, because it means less affirmative action, not more. If Bakke were overturned, and Croson and Adarand applied to university admissions, you might get more movement toward the Democrats than movement away from them.

2. Judicial Review and the Supreme Court as Lightning Rod. A different idea in the piece is that the Supreme Court can act as a lightning rod, taking heat from the political process and onto itself. The best recent example of this would be Judge Richard Posner’s argument about the 2000 Election. Even if the decision in Bush v. Gore didn’t make much sense as a matter of legal argument, Posner argues, it had the beneficial effect of resolving the disputed election and preventing riots in the streets. If Posner is right on his facts, I think this is an excellent example of how the Supreme Court can act as a lightning rod. I’ve argued in a recent article that Posner is wrong on the facts; there were no riots in the streets, and there were unlikely to be riots in the streets. The Democrats did not suggest that they would take no prisoners if they lost. (Ironically the party that was most likely to threaten civil disorder if they lost was the Republican Party, and since they are the law and order party we know they would never do a thing like that. :-) ). Therefore, it was unnecessary for the Supreme Court to act as a lightning rod to resolve the election, and it should not have done so. Still, it is true that two years after the 2000 election the bitterness about the election is largely sublimated in the general public, so perhaps Posner is right, although I’ve also argued that the memory of the election may still come back to haunt the Bush Presidency, like Poe’s tell tale heart. Only time will tell.

3. Religion as a Coalition Busting Issue. The final point the piece makes is that certain types of issues tend to be coalition busting and diffusing them by shifting the grounds of political agendas helps working majorities form; by contrast, other issues are less threatening to coalition building and controversies are less problematic for democratic politics. Slavery was one such divisive, coalition busting issue. I tend to think that religion is another, at least in contemporary America. This is not an argument against the recognition of religious argument in the public sphere, which I support. Rather it is an argument for certain types of decisions about religious liberty that help religious and secular people inhabit the same political space and belong to the same political party. One interesting feature of American politics is that although religion has played a central role in the development of American values, the political parties have usually been quite polyglot. The Democrats, for example, contained both Southern Baptists and urban Catholics. One reason why I support some types of changes in the current doctrines of religious liberty and not others is because of how they affect the everyday practice of politics. I hope to say more about that later.

In an earlier post, I explained that I did not think that Roe v. Wade would be likely to be overturned, although it was quite possible that future Republican judicial appointments would chip away at it severely.

The long run future of Roe as a precedent, however, does not simply concern abortion but also new reproductive technologies like cloning. Congress is currently considering legislation that would ban human cloning. Roe is important to this debate, because it is relevant to the constitutionality of any legislation affecting cloning.

Roe builds on Eisenstadt v. Baird, which tells us that “[i]f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child..” It also builds on Skinner v. Oklahoma, which held that the state could not sterilize convicts for certain crimes because the right to procreate is fundamental.

Proponents of cloning could use Skinner, Eisenstadt and Roe to defend the right to clone. They would use Roe in two different ways.

Prospective parents wish to create new children through cloning. This is the decision whether or not to bear a child. It does not matter whether the method of producing a child is traditional, so the argument goes, because in vitro fertilization does not use traditional methods, and it should equally be protected by Skinner, Roe and Eisenstadt. Especially for couples who cannot have children any other way, the right to clone is constitutionally protected. And even for those who could produce children the old fashioned way but choose not to, Roe still protects that choice.

But Roe is important in another way too. The decision to clone is also the decision to end the life of embryos, because it is likely under current technologies that some number of embryos will be discarded in the process of cloning. (And some fetuses may be discarded in the process too, if the results go awry later in the process.). But, the advocates of cloning might say, that is ok because of Roe v. Wade.

To be sure, the proponents of cloning might argue, the right to clone is not absolute. The state may impose requirements, even stringent requirements, to ensure that the children produced are healthy, and to avoid damage to the gestational mother who carries the cloned baby. But the basic choice whether to use cloning or not, these proponents would say, is beyond the state’s power. The state may not prohibit cloning because it thinks it immoral; it may only legislate to protect health and safety of the DNA donors, the cloned baby, and the gestational mother.

That’s how Roe might be used in a very simple argument for cloning. (I think the argument could be improved with a bit more effort, but that's a first cut). Could Roe v. Wade also be used in an argument against cloning? You bet.

First, opponents of cloning might point out that Roe is premised on the notion of forced motherhood. Women who get pregnant are subject to the social stigma of putting a child up for adoption, and so they will keep the baby and this will completely change their lives. But the prohibition on cloning has nothing to do with forced motherhood. Prohibiting the creation of human clones forces no woman to become a mother against her will.

Second, Roe is really a case (and should have been originally viewed as a case) about women’s equality. Abortion rights are necessary for women to be equal citizens in American society. But human cloning doesn’t substantially contribute to women’s equal citizenship. The inability to clone babies does not subordinate women. Indeed, one could argue in precisely the opposite direction: Cloning will lead to selection of boys over girls, or the selection of traits that will reinforce stereotypes that undermine women’s equality.

Third, Roe is premised on the idea that in order to guarantee women’s liberty and equality, a painful choice must be made to end the life of the fetus. But in the case of cloning, the discarded embryos (or fetuses) are not discarded in order to keep women from forced motherhood. The balance between liberty rights and the life of the embryos or fetuses is completely different in the case of cloning, and therefore should tip the balance against the procedure.

Now these three arguments don’t make Roe *necessary* to the case against cloning. They show that the case against cloning is entirely consistent with the principles behind Roe. But they do so by interpreting Roe as a case about forced motherhood and women’s equality.

This is ironic for two reasons. First, the forced motherhood/equal citizenship argument is the interpretation that feminists and liberal constitutional scholars have been pressing on the courts for years. Second, it is also the interpretation that has been most powerfullly resisted by pro-life forces, who tend to see Roe as a misguided application of a right to privacy that they don’t accept in the first place, and who tend to regard feminist and liberal arguments about abortion as destructive of family values.

But every argument, if invoked often enough in enough different contexts, eventually becomes useful to a different group of people. This is what I call the principle of “ideological drift.” It turns out that the best arguments for not extending Roe to the case of human cloning are based on liberal and feminist justifications for Roe. That doesn’t mean that pro-life forces need to become liberals or feminists. But it does mean that changing contexts may reveal some wisdom in arguments they have rejected for years.

The converse, I think, is also true. As new reproductive technologies like cloning develop, people on the left who are concerned about equality and social hierarchy will increasingly see the value in pro-life arguments about the misuse and abuse of human life. As Mr. Huxley says, it's a brave new world, folks, and that world will surely upend the political certainties of the past all across the political spectrum.

In a recent e-mail Gary Haubold, responding to my post on the coming war with Iraq, takes issue with my reasons for caution:

Here’s what I said:

The major problem, as I see it, is that we really don’t know how long the war will last, how many people will be killed and dislocated, how many refugees we will create, how many lives we will shorten through sickness and famine, whether we will destabilize other regimes in the Middle East, and whether America’s enemies will use our preoccupation to gain advantages elsewhere in the world (think about North Korea, for example).

Here’s Gary’s concern:

Thinking back over every war the United States has fought over the past 200+ years, I can't identify one war that would have been supportable under your framework. Did you really mean to write that the U.S. shouldn't fight any war, because the consequences are so extreme and unknowable?

Gary reads me as saying we should never go to war in conditions of uncertainty. Of course, that’s not my position. One always goes to war in conditions of uncertainty. But before going to war, you must ask: How many casualties are likely to your people and to the other side, and what collateral consequences will occur? How will this affect your strategic situation, five, ten, twenty years from now? While the war with one enemy is going on, what will your other enemies do in response while you are preoccupied? If you do manage to win, how long will you have to occupy your former enemy’s country? How much will the occupation cost? What new wars and conflicts will your occupation provoke? If you don’t ask these sorts of questions, you are just being foolish. This is exactly what the great military strategist Sun Tzu said two thousand years ago. He who reduces uncertainty before going into battle wins, he who embraces uncertaintly loses. That is what I meant by my previous post. The problem is that right now we are not reducing uncertainty. We are embracing it.

There is some evidence that the war with Iraq will not be as painless or quick as the President hopes, but put that aside. Even if the war is painless and quick, as I hope it will be, there is good reason to think that the occupation following the war will be particularly difficult and complicated. Jim Fallows has offered a good summary of the problems, and I recommend it to Gary and to anyone else who is interested. I don’t think one can make a decision about going to war without taking these issues into account. I fear that the Bush Administration is not being sufficiently realistic about these issues. I think there is a lot of wishful thinking going on about about American invulnerability, and about America's ability to remake Iraq any way it wants.

At one point Fallows interviews Merrill McPeak, a retired Air Force General who is dubious about a preemptive strike:

There is an even larger realm of imagination [necessary to understanding the costs of war], McPeak suggested to me. It involves the chain of events a war can set off. Wars change history in ways no one can foresee. The Egyptians who planned to attack Israel in 1967 could not imagine how profoundly what became the Six Day War would change the map and politics of the Middle East. After its lightning victory Israel seized neighboring territory, especially on the West Bank of the Jordan River, that is still at the heart of disputes with the Palestinians. Fifty years before, no one who had accurately foreseen what World War I would bring could have rationally decided to let combat begin. The war meant the collapse of three empires, the Ottoman, the Austro-Hungarian, and the Russian; the cresting of another, the British; the eventual rise of Hitler in Germany and Mussolini in Italy; and the drawing of strange new borders from the eastern Mediterranean to the Persian Gulf, which now define the battlegrounds of the Middle East. Probably not even the United States would have found the war an attractive bargain, even though the U.S. rise to dominance began with the wounds Britain suffered in those years.

What General McPeak is talking about here is exactly what I had in mind when I spoke about the uncertainties of war, and the unintended consequences that war can bring. To my mind, those uncertainties should not be taken as lightly as Gary seems to do. Good generals and good political leaders never take them lightly.

And there is another issue that goes beyond mere strategy. It is the question of how much new evil we will unleash on the world through our use of force. We often talk as if once we know that our cause is a just one, the deaths, the sickness, the famine, the refugees, the dislocations caused by war don’t really count or aren’t our concern. I think that is wrong. Whenever we exercise our power we affect others, and we are morally responsible for what we do. The more evil we cause in the world through our military action, the greater must be the showing that it is counterbalanced by the good we will accomplish. If we do not take this into account when we go to war, we are not living up to our own ideals. The deaths of Iraqis are the deaths of fellow human beings. The refugees we will create are fellow human beings. The children who will die of malnutrition and disease both during and after the war are fellow human beings. That is why Sun Tzu said that the best general is one that never has to fight. He recognized that when you go to war, you destroy-- often in unpredictable ways that can quickly spin out of control. And such destruction is to be avoided unless there is no other way. War is a necessary evil. When it is necessary it must be pursued vigorously, without apology; but when a necessary evil is not necessary it is just plain evil.

Most Americans I listen to today who talk about the war with Iraq do not seem to worry much about the evils that others will suffer. They worry only about American casualties. I think this is short-sighted. The evil we do today, even for the best of reasons, will live on, spreading its effects throughout the globe, and coming back to haunt us in unexpected ways. War is the most serious business of the state, posing the ultimate question of life or death. It should not be treated carelessly or cavalierly. I fear that is precisely what we are about to do.